Defendant's evidence
13Mr BD Hodgkinson SC, who appeared with Mr D Jordan of counsel for the defendant, read an affidavit of Leslie John Gardner, who is a trainer and facilitator for DeltaSBD Ltd. He was authorised to provide his affidavit on behalf of the defendant.
14He commenced employment with the defendant in February 2002 as the Illawarra Operations Manager. Mr Gardner set out his employment history, qualifications, and experience, which included being employed in the mining industry for in excess of 30 years, with the last 14 years of his career in coal mining, having been heavily focused on improving safety systems within coal mines and minimising risk to employees working within the coal industry. He stated the company was incorporated in 1998, when it commenced operations with three employees.
15Mr Gardner stated that the defendant currently employs approximately 300 employees across the Illawarra region. At about the date of the incident, the defendant employed approximately 230 employees in New South Wales and of those, about 35 employees were employed at the Douglas Project. The defendant's core values include working safely, ensuring safety obligations are met by implementing risk assessment and safe work method systems that demonstrate commitment from management and employees which have practical application and can be measured against outcomes.
16Mr Gardner stated that the defendant is very committed to occupational health, safety and welfare. This is demonstrated by the significant resources, both human and financial which Delta applies towards its operations to ensure that its many undertakings are safe for all employees and non-employees across its various projects. In approximate terms, he stated that Delta would spend an estimated $3 M - $3.2 M annually on safety and training, which equates to approximately six per cent of their annual operating costs. Its health and safety performance is reported to the Board, who has established a risk committee and its role is to support and advise the Board as to compliance in meeting its responsibilities and objectives in relation to health and safety related matters.
17The defendant's commitment to safety commences from its corporate safety Management Plan. Health and safety is a key performance indicator used by the directors in the assessment of line manager's performance and employees at an operational level. Its commitment to safety management and adherence to the occupational health and safety legislation, standards, procedures, rules and regulations is foremost in its business operations. This commitment permeates through all of the defendant's systems and procedures within the jurisdictions it operates. The defendant is committed to providing and upholding high standards in safety, training, employee welfare, and has maintained a continuous improvement process to ensure this occurs.
18The defendant has implemented a comprehensive health and safety system underpinned by the provision of information, training, instruction and supervision and quality systems for the identification, assessment of risks and the implementation of appropriate control measures.
19Its high standards and commitment to safety, training and quality have resulted in the defendant being awarded preferred supplier status by leading corporations in mining and construction such as BHP Billiton, Xstrata, Peabody, Austral Coal, Centennial Coal and Gujarat NRE.
20The defendant uses a number of tools to obtain an overview of how expected behaviours are achieved in the workplace. These include toolbox meetings; pre-shift communication meetings; training system; pre-start-checks; review of hazard reports and audits and management of poor performance standards by employees, particularly in respect of safety.
21The defendant's quality management system is aligned to the requirements of the following Australian International Standards:
(a) AS/NZS 9001 - Quality Assurance Systems;
(b) AS/NZS 4801 - OHS Management Systems.
22The defendant's safety system at the time of the incident was aligned to comply with these standards. Among the principal defendant's corporate documents were a Safety Policy; a Safety Management Plan; General Safety Inductions; Safe Work Procedures ("SWP's"); Golden Rules; New Employee Safety/Training/Management Plan and a Drug and Alcohol Policy. Each of these documents were exhibited to the affidavit.
23As part of the defendant's Management Safety System, it has various avenues for review and improvement of safety which include bi monthly Board meetings; monthly Board reports; six monthly Risk Committee meetings; monthly senior management safety review meeting; monthly Managers' meetings; Safety Committees; Business Unit Safety Manager meetings; toolbox meetings; pre-shift communication meetings, and quarterly business unit safety system audits.
24There are specialist health and safety personnel at the corporate level, and business unit level. The defendant has in place a systematic approach for the gathering and distribution of information, which are detailed in the affidavit. Supervisors regularly inspect all areas and tasks undertaken by the defendant's employees. It has a strong corporate policy of not supervising other contract employees at any site.
25Mr Gardner set out the circumstances surrounding the entering into a contract for the Douglas Project. Endeavour Coal as the operator and Manager of the mine, retained ultimate statutory control of the Douglas Project Site and the defendant was subject to the direction of Endeavour Coal. Another company, Southern Colliery also supplied management labour, who reported to Endeavour Coal and who principally co-ordinated labour requirements and some development and maintenance work.
26As part of the tender process for the Douglas Project, Endeavour Coal conducted a comprehensive safety audit of the defendant's occupational health and safety, training, quality and compliance systems. This included:
(a) Comprehensive audit of all safety, training and quality systems;
(b) Providing evidence of systems implementation;
(c) Systems compliance to legislation;
(d) Providing evidence of compliance by employees to stated safety management system;
(e) Inspection of Delta's existing underground operations;
(f) Providing evidence of compliance to training (for all employees including but not limited to - safety, management, environmental and human resources management);
(g) Review of statistical performance for the preceding 3 years in relation to safety performance (Delta bases all statistical information on Australian Standard 1885.1 Measurement of OHS Performance); and
(h) Providing evidence and supporting documentation of all training programs.
27The defendant was awarded the status of a pre-qualified contractor.
28Although the defendant had its own safety management system and plan, all persons working on the Douglas Project were required to operate under the Appin Colliery safety Management Plan.
29As the defendant's employees had worked at several Illawarra Coal sites, certain aspects of the Appin safety Management Plan were not unfamiliar to those employees engaged in the Douglas Project.
30Although the Appin Colliery safety Management Plan was project-specific, the defendant still required its employees and sub-contractors to follow the defendant's core values and expected behaviours on the Douglas Project. The defendant's employees completed a Delta induction separate from any site specific induction prior to commencing work with the defendant, which addressed its core values.
31The defendant had at the Douglas Project, employees charged with the responsibility of the management of the project, including the management of the safety, training, health and welfare programs. The Project Manager was Mr Dave Loach; the Project Scheduler, Mr Mick Grey. There were also Shift Supervisors and Crew Team Leaders.
32All employees who worked on the Douglas Project were required to undertake the Douglas Project induction which was conducted over two days and presented through a series of PowerPoint presentations.
33The induction detailed the standards set by the Douglas Project team including safety, health, welfare and training. The defendant identified a number of core modules which it required all its employees to complete prior to the commencement of work at the Douglas Project. Some of the core modules were dealt with during the site induction, such as job safety analysis ("JSA") training, manual handling, hazard identification, risk assessment and PPE use.
34The defendant provided training to employees who had not completed relevant modules or SWP's specific to their duties. To enable the defendant to provide national qualifications, it had contracted with Upskill Australia, an accredited Registered Training Organisation, to accredit the training system as well as the individual's competency achievement.
35Prior to the commencement of the Douglas Project, the defendant had in excess of 100 SWP's which had been developed through previous projects. The defendant identified the relevant SWP's and reviewed and amended them for use at the Douglas Project. It was required to submit all SWP's for review prior to their use. The defendant also introduced safe Work Method Statements ("SWMS") for the Douglas Project. This was only the second introduction of SWMS's at an Illawarra Coal site. The defendant had spearheaded the introduction of SWMS's at the Dendrobium Mine and the success there was transferred to the Douglas Project.
36The JSA was undertaken when an SWMS was not available, or did not cover the task being undertaken (change management) or a new task was introduced. All employees on the Douglas Project received JSA training during the defendant's induction. JSA's were a fundamental aspect of risk management in the safety management system.
37The defendant initiated random drug and alcohol testing of its employees. toolbox meetings were held every week to reiterate key safety aspects, highlight new changes to systems and procedures and provide updated information about the progress of the Douglas Project and to promote the current safety theme for the period.
38Daily client and pre-shift planning meetings were attended by the defendant's project manager, project scheduler and the Douglas Project safety, mining and maintenance and other contracting personnel. This meeting covered underground operations from the previous shift activities and provided information about the oncoming shift and matters forecast or proposed for short term scheduling. These meetings were usually held close to the commencement of each shift. The meetings were used to communicate information about matters arising from the previous shift concerning hazards and the state of the working equipment, status and operational safety matters.
39For each shift a pre-shift communication meeting was held. This meeting enabled all the information gathered from the client and contractors pre-shift planning meeting and shift supervisor meetings to be passed on to employees in a structured format.
40The meetings covered a wide range of subjects including safety matters, status of the underground workings, daily task activities, plant assigned to each employee and the location of those activities, reports, hazard reports and incidents within the last 24 hours, and any general changeover comments or notifications for the shift.
41A number of senior management meetings were held at the Douglas Project where safety, health, welfare and training were included.
42Mr Gardner stated that the defendant did not have the skills and qualifications to design and build scaffolding that was required to provide a safe platform in order to properly secure the roof of the mine by inserting bolts. He acknowledged that he had read the factual background of the incident set out in the agreed statement of facts. Mr Gardner stated that Mr Loach was on leave when the scaffolding was erected. Before going on leave, he prepared a detailed work plan in relation to the installation of additional roof support. He exhibited a copy of Mr Loach's work plan, which included the following instruction:
'Yogi/Mother to sign off the finished structure assessment with Waco Scaffolders - Handover certificate'
43"Yogi/Mother" refers to the defendant's employees Denis Winley (Yogi) and Greg Nees (Mother). Consistent with this instruction it was understood by the defendant's employees that the scaffolders would certify the safety of the scaffolding.
44Following the incident, the defendant has worked diligently to improve its overall safety performance. It has made a number of changes to its safety systems and procedures.
45New scaffolding procedures have been implemented in the event that similar work is required in the future. A copy of the scaffolding procedure was exhibited to the affidavit. Although it had a safety management system in place which had been audited internally and externally, a comprehensive audit of the entire safety management system was undertaken. All findings were closed out by an iterative process during the next 12 months.
46Following the incident, the first priority of the defendant was to provide support for Mr Evans and his workmates. The defendant provided professional counselling services for all personnel involved in the incident for a period of three weeks. It has applied the outcomes and learning from this incident to other operations to enhance its safety systems and to assist in obtaining a risk free workplace for its employees and others who work presently for the defendant. It distributed to all of its sites a safety alert.
47Mr Gardner stated that at all times during the investigation and following the incident, the defendant fully co-operated and assisted the investigating inspectors and complied with its obligations in this regard. It also recognised its culpability. In this respect, the defendant assisted the prosecution further by making available at its own time and expense the defendant's employees to attend conferences with the prosecutor. Those employees co-operated by giving further full and frank information regarding their knowledge of the facts and circumstances.
48Mr Gardner also expressed his deep remorse in relation to the accident. He stated that the defendant's directors and employees were absolutely shocked by the incident which was the first of its kind experienced by the defendant. The defendant acknowledged that it could never fully appreciate the full impact of the injury to Mr Evans on his life and expectations, children, family and friends. Following the accident, the first priority of the defendant was to provide support for Mr Evans, his family and his workmates. Before any return to work, the defendant wanted to fully understand why the accident took place, and has applied its knowledge of why it occurred to other projects for the benefit of its employees. It continues to strive towards the objective of having an injury free workplace.
49The defendant acknowledged and accepted its culpability arising from the incident which created the risk to the health and safety of Mr Evans and his work colleagues. It further acknowledged that it failed in its duty to ensure the workplace was free of risk.
50Mr Gardner set out the assistance and care provided to Mr Evans after the accident. This included on the day following the incident arrangements were made by the defendant to ensure that Mr Evans was provided with all the necessary help and assistance he and his family required. The defendant's Human Resources Manager contacted Mr Evans at Liverpool Hospital and at home on multiple occasions during the period after the incident and provided support and assistance to him. She also visited Mr Evans and his wife at home on numerous occasions.
51To assist Mr Evans' return to work, a comprehensive return to work program was developed. The defendant also provided financial support to Mr Evans after the incident. This included paying costs for taxis, chemists, for massages and bills not directly related to the incident. As part of Mr Evans' rehabilitation, he was appointed as a Control Room operator at the defendant's Colliery. The defendant also arranged for the mowing of his lawn and lawn maintenance at his home. In December 2008 Mr Evans' driver's licence was cancelled and the defendant, aware that his wife did not have a licence, arranged transport for Mr Evans to attend work as the Control Room operator. It also arranged transport to take Mr Evans to social functions.